The view from outside – opening review

Matrix’s Legal Support Service provides a weekly look at the UK’s relationship with the outside world

Matrix’s Legal Support Service will provide The view from outside, a weekly review of the UK’s legal relationship with the outside world. This week’s opening review gives a snapshot of relevant news from the last month.

UK in Strasbourg

The Ministry of Justice has published its Report to the Joint Committee on Human Rights on the Government’s response to adverse Strasbourg judgments 2014–16.

In Faulkner v UK (App No. 68909/13)(6 Oct 2016), the Court found that the delay in the applicant’s parole hearing for ten months did not render his imprisonment during that time unlawful, and that therefore there was no violation of ECHR, art 5(1).

UK in CJEU

In European Commission v UK (C-304/15) (21 Sep 2016), the Court found that the industrial combustion plant Aberthaw PS was not in compliance with Directive 2001/80 read with Note (3), as its emission levels exceeded those permitted, though its operating licence stated that its limit was higher. Thus the UK had failed to fulfil its obligations under the Directive.

UN & the UK

On 28 Oct 2016, the UK was due to be re-elected to the UN Human Rights Council, and in its candidate manifesto it pledged, among other things, to stand up for freedom of religion or belief and translate the 2030 Agenda for Sustainable Development into action that leaves no one behind. This revival of the UK’s legacy of leadership in the field of human rights is welcome.

However, there are some organisations critical of the discrepancy between the UK’s stated aims here and its national debate on human rights, which has seen proposals to withdraw from the ECHR and ministers criticising UN human rights experts. Thus there is some scepticism as to the UK’s willingness, in practice, to take on and maintain UN human rights standards.

The UK’s role within the UN was discussed in the All-Party Parliamentary Group on the UN. This considered in particular the areas of future development, humanitarian action and peace and security in the wake of the election of the new UN Secretary-General and the vote of the UK to leave the EU.

The UK has indicated willingness to consider further action on limiting the use of the veto at the UN Security Council in cases of mass atrocities. This supports a proposal made by France on the issue, and builds on a commitment made by the UK to adhere to a code of conduct developed by the Accountability, Coherence and Transparency Group.

Evaluation of UK’s international obligations

The UN Committee on the Elimination of All Forms of Racial Discrimination met at the beginning of October to discuss the periodic reports of the UK and Northern Ireland. It indicated that the UK must take care when considering the revision of its human rights legislation. The UK is risking falling short of its international obligations as part of the International Convention on the Elimination of All Forms of Racial Discrimination, as evidenced through the rise of hate crime against minority groups following the Brexit vote.

There have been calls for the UK to do more in emphasising its support of the International Criminal Court. In the wake of the departures of Burundi and South Africa, it has been argued that the UK should ratify the Kampala amendments and encourage allies to accede to the Rome Statute.

Stronger condemnation of the UK has been raised in connection with the political row over the extension of human rights to the battlefield. This has come to a head with the hearing in the Supreme Court of the case concerning the legality of detaining a Taliban suspect in Afghanistan, and follows Theresa May’s announcement that the Government will derogate from the ECHR in future conflicts. This has raised concerns among many civil liberties groups.

Similarly, the UK has been criticised for its dramatic reduction of access to legal aid, with Amnesty International stating that “access to justice forms part of the bedrock of human rights protection in any state”. It considers that those hardest hit by the cuts are children and young people, and people with additional vulnerabilities, including those with mental health problems or disabilities.

Norton Rose Fullbright LLP and the British Institute of International Comparative Law have released a report and hosted a forum on good practices and challenges for business in terms of human rights due diligence obligations (arising from the UN Guiding Principles on Business and Human Rights). Their findings included a major discrepancy between companies which carry out specific human rights due diligence and those engaged in other types of review mechanisms.

Following an inquiry, the UN Committee on the Rights of Persons with Disabilities has published a report criticising UK on its efforts to meet Convention on the Rights of Persons with Disabilities, arts 19, 27 and 28. This has been discussed by Rights Info.

UK’s post-Brexit relationship with the EU

Alhough Theresa May has tried to reassure businesses in response to the CBI’s plea for a “smooth Brexit”, saying that she wants to avoid a “cliff edge”, her aides have denied that this means there will be a transitional deal.

Britain’s former top civil servant, Gus O’Donnell, has stated that Brexit is a huge challenge for the civil service. David Penman, general secretary of the FDA, has also warned of the enormity of the task for the civil service.

In response to criticisms of the Government’s Brexit strategy in PMQs, Theresa May has stated that being in or out of the EU customs union is not a “binary decision”.

Boris Johnson’s promises for the Brexit deal have been branded as “intellectually impossible” and “politically unavailable” by the Dutch finance minister, and the British Foreign Minister has also made disparaging remarks about free movement while stating the UK will probably leave the customs union.

The Centre for European Reform has published a comprehensive review of the stances hardening around Brexit and likely deal negotiations. However, Brexit Secretary David Davis has described his meeting with the European Parliament’s chief negotiator Guy Verhofstadt as a “good start”.

Tony Barber has argued in the Financial Times that, with the extended membership of Europol and not opposing the budget of the European Defence Agency budget, in some areas Britain’s post-Brexit EU relationship will be closer than many think.

The Legal Support Service provide research and paralegal support to Matrix members – whether by finding legal information (cases, legislation, articles, reports etc), producing bundles of authorities for court, or carrying out more substantial research. They also collate daily current awareness bulletins, covering Matrix’s major areas of practice, manage our intranet and extranets and administer the freelance research panel.